Robins Kaplan tries again to steer opioid case away from national MDL

A new opioid-related lawsuit is part of battle by Robins Kaplan LLP to steer claims from the sprawling Ohio multi-district litigation, which they argue is rife with delays that "border on a denial of justice."

Initially filed in Orange County Superior Court, the case is the firm's second attempt to buck the MDL by focusing on claims specific to California state law. It follows a fight in the Northern District of California that sent a lawsuit on behalf of Alameda County to the MDL over the objections of Robins Kaplan attorneys, who in their filings accused defense counsel of "pulling any and every procedural lever" to keep the claims out of the proper court.

The attorneys also lamented the approach of U.S. District Judge Dan Aaron Polster in Ohio, who's overseeing the MDL but isn't adjudicating remand motions "in an orderly and timely fashion," according a stay opposition signed by Robins Kaplan counsel Lucas A. Messenger.

Messenger was trying to stop U.S. District Jon S. Tigar from staying the Northern District action pending transfer to the MDL. Tigar issued the stay anyway, but once the action got to the MDL, the Robins Kaplan team dismissed all but one plaintiff.

Some of the dismissed plaintiffs, including Alameda County, are now in the new action in Orange County, and Robins Kaplan took an immediate step to keep them there by disqualifying the assigned judge, Peter J. Wilson. Wilson is the judge overseeing the five-year-old state lawsuit against opioid manufacturers that's scheduled for trial April. He's deferred to the MDL in litigation, and Robins Kaplan's recusal against him under state Code of Civil Procedure 170.6 indicates they believe he's prejudiced against them or their cause.

The case was reassigned to superior court Judge William D. Claster, one of Wilson's three colleagues in the complex civil department. Claster in September coordinated two state actions from Robins Kaplan with the state attorney general's action in Los Angeles County Superior Court, but he kept the 2014 Orange County case separate. That case appears to have offered at least a general blue print for Robins Kaplan as they pursue their state claims.

Like the 2014 case, Robins Kaplan's claims include false advertising and public nuisance. But unlike the 2014 case, Robins Kaplan is seeking widespread economic damages while the 2014 action seeks only civil remedies and a statewide injunction.

"We're trying to get the merits of the claim adjudicated in an efficient and rapid way," Robins Kaplan partner Michael A. Geibelson told the Daily Journal.

Defense attorneys have already thrown a wrench in their plans, however. Representing Walgreen Co., Charles J. Stevens, a partner at Gibson, Dunn & Crutcher LLP, removed the case to U.S. District Court Nov. 7, calling it "precisely the type of case that Congress intended to be litigated in federal court." Now a jurisdictional battle looms as Geibelson and his team prepare a motion to send it back to superior court. County of Alameda et al., v. Sackler et al., 19CV-02154 (C.D. Cal., filed Nov. 7, 2019).

"The cases are properly venued in the state superior court, and they should be tried there for these claims and these plaintiffs," Geibelson said. "We don't find these basises for removal that have been cited to be supported by the law or facts."

Stevens couldn't be reached for comment, but his notice of removal cited the federal Class Action Fairness Act and said the case implicates "factual and legal issues that span well beyond State lines." He also said the plaintiffs "scripted their Complaint from complaints in cases already being litigated in the Opiate MDL."

The Robins Kaplan team detailed their issues with the MDL last May in their opposition to the Northern District stay, citing San Mateo County's case as an example. That action asserted only state law claims, according to Robins Kaplan, but was removed by defendant McKesson Corp. to the Ohio MDL, where the county's remand motion has gone unaddressed. A San Joaquin County action also has a longstanding remand motion that's been ignored "without any federal court addressing whether federal jurisdiction even exists in the first place," according to the stay opposition.

The case is now with U.S. District Judge David O. Carter, who, like Polster, has a reputation for unorthodoxy. No hearings have been scheduled, but Geibelson said he believes it should be coordinated with the state action in Los Angeles. That action, which includes Kern County and El Monte actions by Robins Kaplan, is with Judge William F. Highberger, who has a status conference scheduled Monday afternoon. People v. Purdue Pharma, L.P, et al., 19STCV19045 (L.A. Super. Ct., filed June 3, 2019).

According to a joint status report filed Nov. 12, four defendants plan to move to stay the coordinated action pending the outcome of the 2014 Orange County action.